Highs and Lows: Rulings on Death Penalty, Vouchers and Drug Testing Close Supreme Court's 2001 Term

NEW YORK--The Supreme Court's decision banning execution of the mentally retarded represented the high water mark for civil liberties during the 2001 Term that ended yesterday. But that victory was offset by decisions upholding school vouchers and student drug testing, both issued on the final day of the Term.

Steven R. Shapiro, the ACLU's national legal director, praised the Court for its death penalty breakthrough. Still, he noted, ""this Court will ultimately be remembered for its conservative judicial philosophy and activist judicial temperament.""

The 6-3 ruling in Atkins v. Virginia was a remarkable turnabout for a Court that has routinely upheld death sentences and that rejected a similar plea on behalf of the mentally retarded only 13 years ago. ""At the very least, the decision suggests that it has become increasingly difficult for the Court to embrace practices that the rest of the world has rejected as inhumane,"" Shapiro said.

Atkins reflects a seismic shift in American public opinion about the fairness and accuracy of our capital punishment system. What remains to be seen is whether it will become a springboard for the Court to engage in a broader reexamination of the death penalty, especially given mounting evidence that innocent people have been wrongfully sentenced to death in alarming numbers.

In that regard, there is reason to be encouraged by the result in Ring v. Arizona, decided only one week after Atkins. Calling into doubt the validity of hundreds of death sentences around the country, Ring made clear that the critical factual issues in a death penalty trial must be resolved by a jury rather than a judge.

Unfortunately, the Court reverted to form when it rejected an Establishment Clause challenge to Cleveland's school voucher program in Zelman v. Simmons-Harris, a case in which the ACLU appeared as co-counsel. The theory of ""parental choice"" endorsed by the Court cannot obscure the fact that for the first time in its history the Court has approved a plan that involves the unrestricted transfer of millions of dollars in taxpayer money to parochial schools where it can and will be used for religious instruction. Moreover, the private school choices offered to parents in these voucher programs are typically quite limited. In Cleveland, for example, 96 percent of the students in the voucher program attended parochial schools.

""The Court's ruling is bad for education and bad for religious liberty,"" Shapiro said. ""But voucher proponents still face an uphill battle. The American public has been much less willing than the Court to approve the use of public funds for religious indoctrination, and has repeatedly rejected voucher proposals in recent years.""

By ruling that public school students who participate in extracurricular activities can be subject to random drug testing, the Court struck another blow against public education in Board of Education v. Earls, also an ACLU case.

The ruling in Earls is simply the latest example of how the war against drugs has had its greatest impact on the Fourth Amendment. When the Supreme Court upheld random drug testing for student athletes in 1995, it stressed that its decision was a limited one: athletes face a special risk of injury if they are impaired; they are subject to more regulation and less privacy than other students; they are often role models for other students; and the school district claimed that there was a particular problem of drug use among its athletes. None of that was true in Earls, which was brought on behalf of a school choir member, yet the outcome was the same and suspicionless drug testing was upheld.

"Every available study demonstrates that the single best way to prevent drug use among students is to engage them in extracurricular activities," said Graham Boyd, Director of the ACLU's Drug Policy Litigation Project, who argued the case before the Justices in March. ""The Court has now endorsed school policies setting up barriers to these positive activities, which is dangerous both for the Constitution and safety of America's children.""

The Court's instincts are entirely different when dealing with the First Amendment, where the Court has repeatedly insisted that the government adhere to constitutional standards even when it purports to be acting on behalf of children. ""This is a Court that has always treated restrictions on speech with great skepticism,"" Shapiro said.

Thus, in Ashcroft v. ACLU, the Court expressed serious misgivings about the overbreadth of the Child Online Protection Act, a federal law that makes it a crime to post material that is ""harmful to minors"" on the World Wide Web. Even though it ultimately sent the case back to the lower courts for further proceedings after a splintered decision on the applicability of community standards to the Internet, the Court continued an injunction barring the government from enforcing the Act.

""The Court clearly had enough doubts about the broad censorship law to leave in place the ban, which is an enormous relief to our clients,"" said Ann Beeson, Litigation Director of the ACLU's Technology and Liberty Program, who argued the case before the Justices last November. ""Just as the Court struck down other laws that attempt to reduce the adult population to reading only what is fit for children, we are confident that the Court will ultimately strike down this law.""

Likewise, in Ashcroft v. Free Speech Coalition, the Court declared that the government's legitimate concern with child pornography does not justify a criminal ban on so-called ""virtual"" child pornography. The difference, as the Court explained, is that ""virtual"" child pornography does not involve images of actual children. In response to the government's claim that the new law should be upheld because the prosecution of traditional child pornography had become too difficult, Justice Kennedy pointed out that the government's proposed shortcut threatened expression with serious social value. As a matter of First Amendment principle, he then rejected the proposition that the government should be allowed to ""suppress lawful speech as a means of suppressing unlawful speech.""

Using similar reasoning, the Court struck down a broad prohibition on political speech by judicial candidates in Minnesota Republican Party v. White. While acknowledging the state's interest in preserving the impartiality of the judicial process, the Court ultimately concluded that the state could not ask voters to choose their judicial officers and then deny them the information they needed to make an informed choice.

The Court's insistence that any restriction on speech be narrowly tailored was evident as well in Watchtower Bible and Tract Society v. Stratton. In a case brought by the Jehovah's Witnesses, whose past persecution has produced many landmark First Amendment decisions, the Court held that people who engage in religious and political advocacy by going door-to-door cannot be required to register with the police or produce identification on demand. While acknowledging that concerns about fraud might be understandable in the context of commercial door-to-door solicitations, the Court concluded that the attempt to register religious and political speakers who pose no danger of fraud was offensive ""to the very notion of a free society.""

In another welcome decision, the Court refused to recognize a qualified immunity defense in Hope v. Pelzer for Alabama prison guards who lashed a prisoner to a hitching post in the midday sun and left him there for seven hours. Given these extreme facts, the Court had little difficulty finding that the Eighth Amendment was violated and that prison officials had ""fair warning"" that their conduct was unlawful.

Other civil rights plaintiffs did not fare as well. In particular, the Court continues to side with employers in cases brought under the Americans with Disabilities Act. In Toyota Motor Mfg. v. Williams, the Court ruled that an employee who was unable to perform her assembly line job because of carpal tunnel syndrome was nonetheless not disabled under the ADA so long as she was able to take care of household chores and personal hygiene. In Chevron, USA v. Echazabel, the Court endorsed a paternalistic interpretation of the ADA that it has rejected in almost every other civil rights context by holding that an employer has the right to decide whether a given job is too dangerous for the employee's own health.

In addition, the Court ruled for the employer in two civil rights cases that did not involve the ADA. In Correctional Services Corp. v. Malesko, the Court held that a private prison corporation could not be sued for violating the constitutional rights of a federal inmate in its care. And, in Hoffman Plastic Compound v. NLRB, the Court held that an undocumented worker was not entitled to a back-pay award even if the employer engaged in unfair labor practices unrelated to the worker's undocumented status, disregarding in the process the contrary view of the federal agency charged with enforcing the law.

A similar disconnect between the Court's view of the law and the lives of poor people was evident in HUD v. Rucker. The plaintiffs in Rucker were public housing tenants who faced eviction from their homes under a ""one strike, you're out"" policy because someone connected to their household had engaged in drug related activities, often away from the premises, and without the tenant's knowledge or permission. In upholding the eviction policy against both a statutory and due process challenge, the Court suggested that public housing tenants who did not like the terms of their lease were always free to seek housing elsewhere.

The Court's decision in Gonzaga University v. Doe will further shut the courthouse door for many civil rights claimants. In Gonzaga itself, the Court ruled that a student cannot sue for damages even if the student's educational records are released in violation of federal law. But the Court's broadly worded opinion will almost certainly have implications in other contexts where Congress has placed conditions on federal funding designed to protect individual rights, but has not explicitly provided for a private right to sue when those individual rights are violated.

On a positive note, the Court did hold that the EEOC can file a discrimination complaint in federal court on behalf of an employee who has signed an arbitration agreement with his or her employer, even though the arbitration agreement would preclude any lawsuit by the employee directly. Nevertheless, the ruling in EEOC v. Waffle House is likely to have only limited significance given the paucity of cases that the EEOC actually files.

In practical terms, therefore, what was gained in Waffle House was probably less important than what was lost in Federal Maritime Comm'n v. South Carolina State Ports Authority, the Court's latest essay on federalism. After describing sovereign immunity in ever-expanding terms, the Court concluded that a federal agency may not file even an administrative complaint against the state or its agencies on behalf of a private party if the private party would be barred from suing the state in federal court because of the Eleventh Amendment.

Two cases this Term involved sex offenders, a recurring subject on the Court's docket in recent years. In Kansas v. Crane, the Court held that a sex offender cannot be civilly committed to a mental institution at the expiration of his criminal sentence unless the state shows that he has ""serious difficulty"" controlling his behavior, in addition to showing that he suffers from a mental abnormality and is dangerous. Otherwise, the Court held, it is impossible to distinguish sex offenders from other potential recidivists who are not subject to civil commitment. In McKune v. Lile, on the other hand, the Court ruled that the Fifth Amendment does not protect a sex offender who is required to confess his past crimes as part of a prison treatment program or face return to a maximum security prison.

Finally, in United States v. Drayton, the Court held that police officers can interrogate passengers on an interstate bus, and seek permission to search their belongings, without informing the passengers that they have a right to leave the bus. Absent some show of force by the police, the Court was unwilling to find that the passengers had been seized for Fourth Amendment purposes.

In what may be a portent of things to come, Justice Souter's dissent warned against applying airport security rules to other means of transportation.

""By next Term,"" Shapiro said, ""the Court will likely have to confront the civil liberties consequences flowing from the government's response to September 11th.""